Doe v. National Conference of Bar Examiners et al

Filing 28

MEMORANDUM AND ORDER: For the reasons in the attached, Plaintiff's request to proceed anonymously is DENIED and Defendants' motion to dismiss for lack of personal jurisdiction is GRANTED. Accordingly, the Clerk of Court is respectfully directed to amend the caption of this case to replace Jane Doe with Natasha Vernon as the Plaintiff, enter judgment accordingly, and close this case. Ordered by Judge Pamela K. Chen on 1/6/2017. (Merin, Eric)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
JANE DOE,
Plaintiff,
- against -

MEMORANDUM & ORDER
1:16-CV-264 (PKC)

NATIONAL CONFERENCE OF BAR
EXAMINERS, PENNY GESSLER, and
ERICA MOESER,
Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiff Jane Doe, proceeding pro se 1 and by pseudonym, brings this action against Penny
Gessler and Erica Moeser (the “Individual Defendants”), and the National Conference of Bar
Examiners (“NCBE”), alleging that Defendants refused to complete Plaintiff’s character and
fitness investigatory report for her admission to the District of Columbia bar. Defendants move to
dismiss. For the reasons that follow, the Court grants Defendant’s motion to dismiss the First
Amended Complaint for lack of personal jurisdiction, and dismisses this action in its entirety.

1

Generally, the Court is obligated to read a pro se plaintiff’s complaint liberally and
interpret it to raise the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89 (2007).
But here, although she is proceeding pro se, according to the Supreme Court of Ohio’s attorney
registration records, Plaintiff is a licensed, albeit inactive, attorney. See Supreme Court of Ohio /
Attorney
Registration
Information,
http://www.supremecourt.ohio.gov/AttySvcs/
AttyReg/Public_AttorneyDetails.asp?ID=0084000#Inactive (last visited December 29, 2016).
Thus, Plaintiff is not entitled to the same degree of liberality normally given to a non-attorney pro
se party. See Tracy v. Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010); Sullivan v. IStoreGreen,
LLC, 14-CV-7163, 2015 WL 152902, at *1 (E.D.N.Y. Jan. 12, 2015); Johnson v. MediSys Health
Network, 10-CV-1596, 2013 WL 1334420, *1 n.1 (E.D.N.Y. Mar. 29, 2013).

BACKGROUND 2
I.

FACTUAL BACKGROUND
This case concerns Defendants’ alleged refusal to process Plaintiff’s character and fitness

application—a requirement for admission to practice law in the District of Columbia—because of
an improperly executed signature page. According to Plaintiff’s Amended Complaint, the District
of Columbia required her to use the NCBE’s services for a character and fitness investigation in
connection with her bar admission petition.3 (Dkt. 11 (“Am. Compl.”) ¶ 6.) On December 16,
2010, presumably after reviewing Plaintiff’s character and fitness application, NCBE contacted
Plaintiff to inform her that she had improperly executed the application’s signature page, and
requested that she “reply immediately and submit a newly signed signature page” or else “her
request for an investigatory report would not be honored[.]” (Id. ¶ 7.) 4 After Plaintiff and the

2

The facts contained in this section are drawn from Plaintiff’s Amended Complaint and
the parties’ sworn affidavits on the issue of personal jurisdiction. At this stage, Plaintiff’s
allegations are generally accepted as true, but “on a motion to dismiss for lack of jurisdiction,
where defendant rebuts [a plaintiff’s] unsupported allegations with direct, highly specific,
testimonial evidence regarding a fact essential to jurisdiction—and [a plaintiff does] not counter
that evidence—the allegation may be deemed refuted.” Merck & Co. v. Mediplan Health
Consulting, Inc., 425 F. Supp. 2d 402, 420 (S.D.N.Y. 2006) (internal quotation marks and citation
omitted). “In deciding a pretrial motion to dismiss for lack of personal jurisdiction[,] a district
court has considerable procedural leeway. It may determine the motion on the basis of affidavits
alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing
on the merits of the motion.” Blau v. Allianz Life Ins. Co. of N. Am., 124 F. Supp. 3d 161, 170
(E.D.N.Y. 2015) (quoting Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir.
2013)); Fischer v. Stiglitz, 15-CV-6266, 2016 WL 3223627, at *2 (S.D.N.Y. June 8, 2016) (“In
deciding a Rule 12(b)(2) motion, the Court may rely on materials that are outside the pleadings,
including any affidavits submitted by the parties.”).
3

According to the application form currently available on the NCBE’s website, a character
and fitness investigation determines an individual’s “ability to meet the professional
responsibilities of a lawyer.” Request for Preparation of a Character Report, available at
http://www.ncbex.org/character-and-fitness/ (last visited December 15, 2016).
4

Although Plaintiff’s Amended Complaint refers repeatedly to her character and fitness
application, it is devoid of basic information regarding the application, such as the date on which
she sent it to the NBCE. But, because the Court deems the character and fitness application as
2

NCBE exchanged various emails, the NCBE “refused to proceed” with Plaintiff’s application.
(Id.) On June 3, 2014, the District of Columbia’s Committee on Admissions wrote to Plaintiff
“indicating that the District of Columbia would complete the processing of [her] application for
admission . . . if the NCBE completed and submitted” her character and fitness report. (Id. ¶ 9.)
The NCBE then refused to cooperate with Plaintiff, and never provided the character and fitness
report to the District of Columbia Committee on Admissions. (Id. ¶ 10.)
Based on these allegations, Plaintiff claims that Defendants are liable under common law
for: abuse of power and ultra vires actions; breach of contract between Plaintiff and NCBE; fraud
and misrepresentation; negligence; and breach of contract between NCBE and the District of
Columbia, of which Plaintiff asserts she was a third-party beneficiary. (Id. ¶¶ 14-18.) Plaintiff
alleges that in addition to the NCBE, the Individual Defendants are liable because “Defendant
Gessler is responsible for assembling all Character and Fitness Reports at the NCBE” and
“Defendant Moeser is Defendant Gessler’s supervisor.” (Id. ¶ 6.) She seeks damages “in the sum
of $1,000,000.00, plus interest calculated from February 8, 2011 through the date on which this
dispute is finally resolved.” (Id. at ECF 8.)
II.

RELEVANT PROCEDURAL HISTORY
Plaintiff filed the instant action on November 27, 2015 in Kings County Supreme Court.

(Dkt. 1-2 at ECF 2.) On January 19, 2016, Defendants removed the action to this Court based on
diversity jurisdiction because Defendants are residents of Wisconsin, Plaintiff is a resident of New

incorporated by reference in Plaintiff’s Amended Complaint, the Court may consider its contents.
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). According to the application,
the NCBE received Plaintiff’s application on September 27, 2010—more than five years before
the filing of Plaintiff’s State court complaint. (Dkt. 24-1 at ECF 3.)
Citations to “ECF” refer to the pagination generated by the Court’s electronic docketing
system and not the document’s internal pagination.
3

York, and Plaintiff seeks damages in excess of $75,000. (Dkt. 1.) On February 18, 2016, the
Court held a pre-motion conference to discuss Defendants’ anticipated motion to dismiss. Plaintiff
failed to appear, informing the Court that she had not received notice of the conference. (Dkt. 7.)
At the February 18th conference, the Court dismissed Plaintiff’s Complaint for lack of personal
jurisdiction with leave to amend. On March 17, 2016, Plaintiff filed an Amended Complaint,
which is the subject of the present motion. (Dkt. 11.)
DISCUSSION
I.

PLAINTIFF’S USE OF A PSEUDONYM
As an initial matter, the Court addresses Plaintiff’s request to proceed under the guise of a

pseudonym. Federal Rule of Civil Procedure 10(a), which governs pleadings in civil actions,
provides that “[t]he title of [a plaintiff’s] complaint must name all the parties.” F.R.C.P. 10(a)
(emphasis added). Courts have “carved out a limited number of exceptions to the general
requirement of disclosure [of the names of parties], which permit plaintiffs to proceed
anonymously. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (internal
quotation marks and citation omitted) (alteration in original). In this Circuit, “when determining
whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest
in anonymity must be balanced against both the public interest in disclosure and any prejudice to
the defendant.” Id. The Second Circuit has identified a “non-exhaustive” list of factors to consider
when determining whether a plaintiff may proceed under a pseudonym including:
(1) whether the litigation involves matters that are highly sensitive and [of a]
personal nature; (2) whether identification poses a risk of retaliatory physical or
mental harm to the . . . party [seeking to proceed anonymously] or even more
critically, to innocent non-parties; (3) whether identification presents other harms
and the likely severity of those harms, including whether the injury litigated against
would be incurred as a result of the disclosure of the plaintiff's identity; (4) whether
the plaintiff is particularly vulnerable to the possible harms of disclosure,
particularly in light of his age; (5) whether the suit is challenging the actions of the
4

government or that of private parties; (6) whether the defendant is prejudiced by
allowing the plaintiff to press his claims anonymously, whether the nature of that
prejudice (if any) differs at any particular stage of the litigation, and whether any
prejudice can be mitigated by the district court; (7) whether the plaintiff’s identity
has thus far been kept confidential; (8) whether the public’s interest in the litigation
is furthered by requiring the plaintiff to disclose his identity; (9) whether, because
of the purely legal nature of the issues presented or otherwise, there is an atypically
weak public interest in knowing the litigants’ identities; (10) whether there are any
alternative mechanisms for protecting the confidentiality of the plaintiff.
Id. at 190 (internal quotation marks and citations omitted) (alterations in original).
Here, the Court denies Plaintiff’s request to proceed anonymously because she fails to
demonstrate any valid interest in preserving her anonymity, let alone that the balancing of the
parties’ and public’s interests tilts in her favor. Rather, her argument boils down to an unsupported
accusation that if her name is made public, then it is “more likely than not that . . . the lawsuit
could cause the plaintiff to be blackballed nationally and internationally” because the “NCBE is
currently the only independent organization responsible for the Character and Fitness portion of
many jurisdictions’ bar applications[.]” (Dkt. 25 at ECF 4 n.2.) Even accepting the rationality of
this fear, Plaintiff’s interest in not being “blackballed nationally and internationally” in the legal
profession does not compare with the serious interests that courts have found to justify permitting
a plaintiff to proceed anonymously, such as risks of physical harm or unjustified invasions of
privacy or public embarrassment. See, e.g., Grottano v. The City of N.Y., 15-CIV-9242, 2016 WL
2604803, at *2 (S.D.N.Y. Mar. 30, 2016) (permitting plaintiffs to proceed under pseudonyms
where they brought suit against City of New York alleging prison guards conducted inappropriate
body cavity searches when they visited inmates at State prison); Malibu Media, LLC v. Doe, 15CIV-2624, 2015 WL 6116620, at *5 (S.D.N.Y. Oct. 16, 2015) (permitting defendant to proceed
under pseudonym where defendant was accused of illegally downloading adult videos); Michael
v. Bloomberg L.P., 14-CV-2657, 2015 WL 585592, at *3 (S.D.N.Y. Feb. 11, 2015) (“There is no
5

issue here of physical retaliation or mental harm against plaintiff. Nor is this the type of unusual
case involving matters of a highly sensitive or personal nature—i.e., claims involving sexual
orientation, pregnancy, or minor children—in which courts have justified anonymous plaintiffs
proceeding pseudonymously.”).
Moreover, Plaintiff’s argument that she must maintain anonymity because Defendants
could retaliate against her is belied by the fact that she has already publicly disclosed her identity
during the course of this litigation. “[F]iguratively speaking, the cat is already out of the bag.”
Corley v. Vance, 15 CIV. 1800, 2015 WL 4164377, at *9 (S.D.N.Y. June 22, 2015). Based on the
parties’ submissions before the Court, it is clear that Defendants are fully aware of Plaintiff’s
identity and her status as the plaintiff in this action. Specifically, Plaintiff publicly identified
herself in a myriad of State and federal court documents relating to this matter, which have not
been filed under seal and are currently accessible to the public. (See NYSCEF Doc. No. 1 at 1, 2,
7; NYSCEF Doc. No. 2 at 2; NYSCEF Doc. No. 3 at 1, 2; NYSCEF Doc. No. 4 at 1; NYSCEF
Doc. No. 5 at 1; Dkt. 8 at ECF 5; Dkt. 11 at ECF 8.) Indeed, under Plaintiff’s signature as “Jane
Doe” on her Amended Complaint, she reveals her true identity. (Am. Compl. at ECF 8 (identifying
Plaintiff as “Natasha Vernon”).) 5
Lastly, even if Plaintiff had a strong interest in maintaining her anonymity, it is outweighed
by the countervailing public interest in the disclosure of her identity because of her status as a
licensed attorney and officer of the Court. In New York, for example, applicants to the bar are
5

The Court cannot reconcile Plaintiff’s assertion of a strong interest in preserving her
anonymity with her utter carelessness in maintaining that anonymity in her public filings. To the
extent Plaintiff did not know the proper procedure for filing documents under seal, she clearly
could have contacted the Clerk’s Office for such information or, at the very least, filed her
documents with redactions, as Defendants did out of an abundance of caution. (See, e.g., Dkt. 251 at ECF 1.) That Plaintiff is an attorney makes her failure to do either even more damaging to
her claim that she values her anonymity in this matter.
6

required to disclose their involvement in litigation.

See Admission Multip Packet,

http://www.nybarexam.org/Admission/AdmissionMultiDeptPacket.htm (last visited Jan. 6, 2017).
This interest “far outweigh[s] [[P]laintiff’s] interest in not suffering professional embarrassment
and any concomitant financial harm.” Doe v. Delta Airlines Inc., No. 15-3561-CV, 2016 WL
6989793, at *3 (2d Cir. Nov. 29, 2016); see also Doe v. Colgate Univ., 5:15-CV-1069, 2015 WL
5177736, at *2 (N.D.N.Y. Sept. 4, 2015) (finding that plaintiff’s privacy interests did not
“outweigh the public’s interest in full disclosure of [the] judicial proceedings. Plaintiff has
voluntarily opted to commence this litigation and air his grievances in a quintessentially public
forum.”); Michael v. Bloomberg L.P., 2015 WL 585592, at *3. Indeed, a State board of law
examiners might also find Plaintiff’s actions in this litigation and correspondence with the NCBE
relevant to assessing her character and fitness to practice law. Furthermore, permitting Plaintiff to
conceal her identity, in particular, from Defendants would, for obvious reasons, undermine their
ability to defend themselves in this action.
Accordingly, the Clerk of Court is respectfully directed to amend the caption of this case
to replace Jane Doe with Natasha Vernon as the Plaintiff.
II.

PERSONAL JURISDICTION
Turning to Defendants’ motion to dismiss, Defendants argue that this Court lacks personal

jurisdiction over Defendants. The Court agrees.
“Personal jurisdiction over a defendant in a diversity action is determined by the law of the
forum in which the court sits.” CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986).
“On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the
burden of showing that the court has jurisdiction over the defendant.” Metro. Life Ins. Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996) (citing Robinson v. Overseas Military
Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)); Megna v. Biocomp Labs. Inc., 166 F. Supp. 3d 493,
7

496 (S.D.N.Y. 2016). At this stage, Plaintiff’s allegations are generally accepted as true, except
where the “defendant rebuts [a plaintiff’s] unsupported allegations with direct, highly specific,
testimonial evidence regarding a fact essential to jurisdiction—and [a plaintiff does] not counter
that evidence.” Merck, 425 F. Supp. 2d at 420. In such a case, “the allegation may be deemed
refuted.” Id.
Plaintiff asks the Court to exercise either general or specific jurisdiction over the NCBE
and Individual Defendants. 6 “General jurisdiction allows a court to adjudicate any and all claims
against a defendant, regardless of whether the claims are connected to the forum state. Bonkowski
v. HP Hood LLC, 15-CV-4956, 2016 WL 4536868, at *2 (E.D.N.Y. Aug. 30, 2016) (internal
quotation marks and citations omitted). On the other hand, specific jurisdiction only exists where
there is some connection between Plaintiff’s underlying claim and the forum. Sonera Holding
B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014). New York courts exercise
general jurisdiction under New York’s Civil Practice Law and Rules (“CPLR”) § 301 and specific
jurisdiction under CPLR § 302. Muraco v. Sandals Resorts Int'l, 14-CV-4896, 2015 WL 9462103,
at *3 (E.D.N.Y. Dec. 28, 2015).
No matter the statutory provision implicated, however, “the exercise of personal
jurisdiction is informed and limited by the U.S. Constitution’s guarantee of due process, which
requires that any jurisdictional exercise be consistent with traditional notions of fair play and
substantial justice.” Bonkowski, 2016 WL 4536868, at *2 (internal quotation marks and citations
omitted). In other words, even if the Court can exercise jurisdiction under New York’s long-arm
statute, it still must determine whether jurisdiction comports with the Constitution’s Due Process

6

Plaintiff does little to distinguish between exercising jurisdiction over the NCBE versus
the Individual Defendants.
8

Clause. Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007) (citing Intl’ Shoe Co. v.
Washington, 326 U.S. 310 (1945)); Mercator Corp. v. Sapinda Holding B.V., 15-CV-2970, 2016
WL 6683505, at *6 (S.D.N.Y. Nov. 14, 2016) (citing Bank Brussels Lambert v. Fiddler Gonzalez
& Rodrigquez, 171 F.3d 779, 784 (2d Cir. 1999)).
A.

General Jurisdiction

Under CPLR § 301, “a court may exercise jurisdiction over a foreign defendant who is
doing business in New York with a fair measure of permanence and continuity.” Muraco, 2015
WL 9462103, at *5 (internal quotation marks and citation omitted) (emphasis added). This test
applies equally to foreign corporate defendants and nonresident individuals, Reich v. Lopez, 38 F.
Supp. 3d 436, 454 (S.D.N.Y. 2014), and requires “‘continuous, permanent, and substantial activity
in New York.’” Persh v. Petersen, 15 CIV. 1414, 2016 WL 4766338, at *5 (S.D.N.Y. Sept. 13,
2016) (quoting Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000)); Landoil Res.
Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990); In re Kingate
Mgmt. Ltd. Litig., 09-CV-5386, 2016 WL 5339538, at *30–31 (S.D.N.Y. Sept. 21, 2016).
Separate and apart from New York statutory requirements, the Supreme Court has
emphasized that for general jurisdiction purposes, due process is satisfied “only if [a company] is
headquartered or incorporated in the forum state or is otherwise ‘at home’ in that state.”
Thackurdeen v. Duke Univ., 15-3082-CV, 2016 WL 4578662, at *1 (2d Cir. Sept. 1, 2016) (citing
Daimler AG v. Bauman, 134 S.Ct. 746, 761 & n.19 (2014)). This standard makes it “incredibly
difficult to establish general jurisdiction in a forum other than the place of [the corporate
defendant’s] incorporation or principal place of business.” Stroud v. Tyson Foods, Inc., 91 F.
Supp. 3d 381, 387 (E.D.N.Y. 2015) (internal quotation marks and citation omitted); Daimler, 134
S.Ct. at 760 (recognizing that “only a limited set of affiliations with a forum will render a defendant

9

amenable to all-purpose jurisdiction”). 7 Similarly, for an individual defendant, “the paradigm
forum for the exercise of general jurisdiction is [his or her] domicile.” Daimler, 134 S. Ct. at 760
(citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)); Reich, 38
F. Supp. 3d at 454–55 (“For general jurisdiction over an individual to comport with due process,
Defendants must be domiciled in New York, served in New York, or have otherwise consented to
the court's jurisdiction.”). 8
1.

The NCBE

As to the NCBE, a national organization incorporated in Illinois with its principal place of
business in Wisconsin, the Court finds that exercising general jurisdiction in New York or this
district would not comport with due process. 9 As Plaintiff concedes, “Defendants’ decisions

7

In Daimler, the Supreme Court recognized that this standard did “not foreclose the
possibility that in an exceptional case, a corporation’s operations in a forum other than its formal
place of incorporation or principal place of business may be so substantial and of such a nature as
to render the corporation at home in that State.” 134 S.Ct. at 761 n.19 (internal citations omitted)
(emphasis added); see also Brown v. Lockheed Martin Corp., 814 F.3d 619, 627 (2d Cir. 2016).
But for the reasons discussed further below, Plaintiff fails to meet this burden.
8

Although not addressed by the parties, the Second Circuit has acknowledged “some
tension” between the Supreme Court’s due process test under Daimler and New York CPLR’s
“doing business” test for purposes of general jurisdiction. Sonera, 750 F.3d at 225; Reich, 38 F.
Supp. 3d at 454–55 (“The Supreme Court’s recent decision in Daimler AG v. Bauman has brought
uncertainty to application of New York’s ‘doing business’ rule. As a result, it is unclear whether
existing New York general jurisdiction jurisprudence remains viable.”). Because the Court finds
that exercising general jurisdiction here would not comport with Due Process, it need not resolve
this tension.
9

Because the Court concludes that exercising jurisdiction over NCBE would not satisfy
due process, it need not address whether Plaintiff can demonstrate that New York’s statutory
requirements for general jurisdiction are satisfied. See Thackurdeen, 2016 WL 4578662, at *1
(“Whatever application § 301 might have, however, it is apparent that the exercise of general
jurisdiction over defendants would be inconsistent with constitutional due process.”); Sonera, 750
F.3d at 224 n.2 (“There is no need to address the scope of general jurisdiction under New York
law because the exercise of general jurisdiction over [defendant] is clearly inconsistent with
Daimler.”); Muraco, 2015 WL 9462103, at *5 (“The Court declines to determine whether section
10

concerning Plaintiff’s application were made in Wisconsin,” and more generally, the NCBE’s
“products are developed mainly in Wisconsin[.]” (Dkt. 25 at ECF 12.) In addition, according to
a declaration submitted by Defendant Erica Moeser, the President and Chief Executive Officer of
the NCBE since 1994, the “NCBE does not own or lease any offices or property in the State of
New York, occupy any offices in the State of New York, or own any bank or other financial
accounts in the State of New York.” (Dkt. 23 (“Moeser Dec.”) ¶ 6.)
Nonetheless, Plaintiff argues that the Court should find general jurisdiction as to the NCBE
because it develops and administers bar-related exams that are used in New York, including the
Multistate Bar Examination (“MBE”), Multistate Performance Test (“MPT”), Multistate Essay
Exam (“MEE”), and Multistate Professional Responsibility Exam (“MPRE”). 10 Accepting this
argument, however, would subject the NCBE to limitless general jurisdiction across the country,
a result the Supreme Court directly cautioned against in Daimler. 134 S.Ct. at 762 (“a corporation
that operates in many places can scarcely be deemed at home in all of them”). The mere sale of
exams to the New York bar authority, without any other physical presence in the State and without
the sale constituting a large percentage of revenue for the NCBE, is insufficient to establish general
jurisdiction under Daimler, see Minholz v. Lockheed Martin Corp., 1:16-CV-154, 2016 WL
7496129, at *13 (N.D.N.Y. Dec. 30, 2016) (finding no general jurisdiction over Colorado-based

301 is applicable to these facts because there are no facts to support a finding that the exercise of
general jurisdiction would comport with due process.”).
10

Defendants dispute the suggestion that the NCBE administers any of these exams in New
York, maintaining that these “exams are [only] purchased from NCBE” and “NCBE staff do not
administer” any of the exams themselves. (Moeser Dec. ¶ 7.) Defendants explain that the MBE,
MPT, and MEE are administered by the State bar authority in the jurisdiction where the applicant
is seeking admission and that the MPRE is administered by a third-party vendor located outside of
New York. (Id. ¶¶ 7-9.) Accordingly, the Court finds that the NCBE does not administer any of
these exams in New York.
11

company because, among other reasons, “less than one percent of [the compnay’s] sales had a
billing or shipping address in New York”), and is significantly less contact than in other cases
where general jurisdiction has not been found. See, e.g., Stroud, 91 F. Supp. 3d at 388 (existence
of Tyson Foods manufacturing facility in Buffalo, New York was insufficient for general
jurisdiction over the company where it operated hundreds of such plants nationwide, observing
that “[t]he notion that [a restaurant chain] can be considered ‘at home’ in every forum in which it
operates restaurants was specifically rejected in Daimler.”); Gucci Am, Inc. v. Weixing Li, 768
F.3d 122, 135 (2d Cir. 2014) (no general jurisdiction where bank had branch offices in New York);
Bonkowski, 2016 WL 4536868, at *2 (no general jurisdiction over company with manufacturing
plants and administrative office in New York). Accordingly, Plaintiff has failed to make a prima
facie showing that general jurisdiction exists over the NCBE. 11
2.

The Individual Defendants

Plaintiff’s argument for exercising general jurisdiction over the Individual Defendants is
even more tenuous. Relying on the Individual Defendants’ statements that they have visited New
York sporadically for personal and professional reasons over the past ten years, 12 Plaintiff argues

11

Plaintiff also argues, without citation to any legal authority except Black’s Law
Dictionary, that the Court has general jurisdiction over the NCBE because Bryan Williams, the
former Chair-Elect of the NCBE’s Board of Directors, lives and works in New York. But, “the
mere fact that a board member resides in New York is not enough to confer jurisdiction.” La Piel,
Inc. v. Richina Leather Indus. Co., 10-CV-1050, 2013 WL 1315125, at *9 n.12 (E.D.N.Y. Mar.
29, 2013).
12

In her declaration, submitted in support of Defendant’s motion, Defendant Gessler states
that (1) she is a “lifelong resident of Wisconsin” who currently lives in Madison, Wisconsin, and
(2) over the last ten years, she has only “attended one business meeting in New York as an
employee of NCBE” and has not visited the State for personal reasons at all. (Dkt. 24 (“Gessler
Dec.”) ¶¶ 17, 19). Defendant Moeser states in her declaration that (1) she has resided in Madison
“for more than 30 years,” (2) in the past ten years, she has attended less than eight NCBE business
meetings or conferences in New York, and (3) she occasionally visits the State for personal
12

without citing any legal authority that she has established general jurisdiction over the Individual
Defendants as they have allegedly “cement[ed] a continuous relationship with New York.” (Dkt.
25 at ECF 10.) Under New York law, however, “[m]ultiple business trips and meetings in the
forum state are insufficient to establish the continuous and permanent presence required for general
jurisdiction under New York law.” Persh, 2016 WL 4766338, at *7. Plaintiff alleges no facts to
demonstrate that the Individual Defendants’ contacts are continuous or permanent, as required
under New York law, 13 let alone that they constitute the “exceptional case” necessary to satisfy
the due process test articulated in Daimler. 14
In sum, general jurisdiction cannot be found under New York law as to Defendants in this
matter.
B.

Specific Jurisdiction

Plaintiff next asserts that the Court has specific jurisdiction over Defendants because (1)
her claim arises from Defendants’ business transactions in New York State (CPLR 302(a)(1)); and

reasons. (Moeser Dec. ¶¶ 11, 12-14). The Amended Complaint contains no factual allegations
regarding the nature or extent of the Individual Defendants’ contacts with New York.
13

Plaintiff also does not allege that the Individual Defendants are subject to the Court’s
jurisdiction as officers or representatives of the NCBE. Such an argument would fail in any event.
See Duravest, Inc. v. Viscardi, A.G., 581 F. Supp. 2d 628, 635 (S.D.N.Y. 2008) (an individual
acting on a corporation’s behalf is not subject to general personal jurisdiction under CPLR § 301);
Big Apple Pyrotechnics and Multimedia Inc. v. Sparktacular Inc., 2007 WL 747807, at *6
(S.D.N.Y. Mar. 9, 2007) (“Although a corporation can act only through an employee or agent, the
employee or agent being a live rather than a fictional being can act on behalf of himself or his
employer or principal. He does not subject himself, individually, to the CPLR 301 jurisdiction of
our courts, however, unless he is doing business in our State individually.”) (quoting Laufer v.
Ostrow, 55 N.Y.2d 305, 313 (1982)).
14

Not surprisingly, courts in other jurisdictions have declined to exercise jurisdiction over
Defendant Moeser for similar reasons. See, e.g., Shestul v. Moeser, 344 F. Supp. 2d 946, 949 (E.D.
Va. 2004); Walsh v. Massachusetts Bd. of Bar Examiners, 01-30166, 2002 WL 561024, at *2 (D.
Mass. Apr. 9, 2002) (“Ms. Moeser lacks any contacts, ‘minimum’ or otherwise, with the
Commonwealth of Massachusetts; the court therefore lacks personal jurisdiction over her.”).
13

(2) Defendants committed a tortious act out-of-state, which “caused Plaintiff to suffer loss of
money, loss of reputation and loss of experience in New York . . . .” (CPLR 302(a)(3)). (Dkt. 25
at ECF 12-13.) The Court addresses each in turn.
1.

New York CPLR § 302(a)(1)

New York’s long-arm statute permits a court to exercise specific jurisdiction over a nondomiciliary if the defendant “transacts business within the state” and the “cause of action arise[s]
from” that transaction. CPLR § 302(a)(1); Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168
(2d Cir. 2015) (internal quotation marks and citations omitted).
a)

“Transacting Business” Prong

Under New York law, a “defendant transacts business in New York if it has ‘purposely
availed [it]self of the privilege of conducting activities within New York and thereby invoked the
benefits and protections of its law.’” Stroud, 91 F. Supp. 3d at 389 (quoting D.H. Blair & Co. v.
Gottdiener, 462 F.3d 95, 104 (2d Cir. 2006)). “More than limited contacts are required for
purposeful activities sufficient to establish that the non-domiciliary transacted business in New
York.”

First Horizon Bank v. Moriarty-Gentile, 10-CV-00289, 2015 WL 8490982, at *5

(E.D.N.Y. Dec. 10, 2015) (internal quotation marks and citations omitted). “[I]t is not the quantity
but the quality of the contacts that matters under [New York’s] long-arm jurisdiction analysis.”
Yurasov-Lichtenberg v. Betz, 15-CV-1430, 2016 WL 4544031, at *4 (E.D.N.Y. Aug. 30, 2016)
(internal quotation marks and citation omitted) (alteration in original). Here, Plaintiff contends
that Defendants “transacted business” in New York by “repeatedly mail[ing] correspondence to
the Plaintiff at a New York address” and conducting investigatory activities related to her character
and fitness application in New York. (Dkt. 25 at ECF 11.) 15 For purposes of specific jurisdiction

15

Notably, Plaintiff fails to allege a single fact in her Amended Complaint linking the
Individual Defendants to these contacts, i.e., that Defendant Moeser or Gessler sent the letters to
14

under CPLR § 302(a)(1), the Court finds that these activities do not qualify as “transacting
business” because they do not amount to Defendants “purposefully availing [themselves] of the
“privilege of conducting activities within New York.” Stroud, 91 F. Supp. 3d at 389 (internal
quotation marks and citation omitted).
First, Defendants’ alleged mailing of materials relating to Plaintiff’s character and fitness
application to Plaintiff while she was in New York, in itself, does not constitute transacting
business sufficient to confer specific jurisdiction. 16 See Licci ex rel. Licci v. Lebanese Canadian
Bank, SAL, 673 F.3d 50, 51 (2d Cir. 2012) (citing Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 508
(2007) (“[T]he overriding criterion necessary to establish a transaction of business is some act by
which the defendant purposefully avails itself of the privilege of conducting activities within New
York.”); Kahn Lancaster, Inc. v. Lark Int’l Ltd., 956 F. Supp. 1131, 1125 (S.D.N.Y. 1997) (The
“nature and quality of the New York contacts must be examined to determine their significance.”)
(citing George Reiner & Co. v. Schwartz, 363 N.E.2d 551, 553–54 (N.Y. 1997)). Indeed, “New

Plaintiff or performed the investigatory activities in the State of New York. Her inclusion of such
facts in her opposition brief does not alter the Court’s analysis because, as discussed further below,
the mailing of materials to Plaintiff while she was in New York, in itself, is insufficient to confer
specific jurisdiction.
16

Plaintiff makes seemingly contradictory factual allegations with respect to her State of
residence at the time she submitted her District of Columbia bar admission petition, which included
her character and fitness application. On the one hand, she alleges that she “assembled her
application for admission to the District of Columbia while physically present in New York State,”
which is consistent with Plaintiff’s notarized attestation that she signed the application in Kings
County, New York. (Dkt. 24-1 at ECF 26.) At the same time, however, she alleges that by
February 8, 2011, she “had permanently moved to New York,” which was after she already
corresponded with the NCBE about her character and fitness application. And, on the character
and fitness application itself, notwithstanding it being notarized in New York, Plaintiff identified
current addresses in Cleveland, Ohio and London, England—not New York. (Dkt. 24-1 at ECF
4.) In that same application, Plaintiff attested that she last lived in New York in June 2003. (Id.)
The only way to reconcile these allegations is to infer that Plaintiff assembled and submitted her
District of Columbia bar admission petition, including her and character and fitness application,
while physically present, but not yet permanently residing, in New York.
15

York courts have consistently refused to sustain [“doing business”] jurisdiction solely on the basis
of defendant’s communication from another locale with a party in New York.” Giusto v. Rose &
Womble Realty Co., LLC, 15-CV-5249, 2016 WL 4544038, at *7 (E.D.N.Y. Aug. 31, 2016)
(internal quotation marks and citation omitted); see Parke-Bernet Galleries v. Franklyn, 256
N.E.2d 506, 508–09 (N.Y. 1970) (contacts by telephone or mail only provide a basis for asserting
personal jurisdiction over non-resident defendants where the defendant, through those contacts,
“projected himself” into New York in such a manner that he “purposefully availed himself of the
privilege of conducting business in New York and thereby invoked the benefits and protections of
its laws”) (citations and quotations omitted); Carlson v. Cuevas, 932 F. Supp. 76, 78, 79 (S.D.N.Y.
1996) (telephone calls and other communications to New York, standing on their own, do not
necessarily confer jurisdiction).
That Plaintiff may have compiled or submitted her character and fitness application to the
NCBE while temporarily located—or even residing—in New York is plainly insufficient to confer
specific jurisdiction over the NCBE as it improperly shifts the inquiry to Plaintiff’s contacts with
New York, rather than whether Defendants purposefully availed themselves of the privilege of
conducting activities in New York. Plaintiff’s fortuitous decision to mail her character and fitness
application and/or correspond with the NCBE while in New York does not convert the NCBE’s
activities into purposefully seeking to do business in the State. Rather, the NCBE’s acts were
merely done in response to Plaintiff’s presence and conduct in New York. Mason v. Antioch Univ.,
15-CV-5841, 2016 WL 2636257, at *8 (E.D.N.Y. May 5, 2016) (finding no specific jurisdiction
under CPLR § 302(a)(1) even though plaintiff compiled application to school at home in New
York because such communications were “responsive”).

16

Second, Defendants’ alleged investigatory activities are also insufficient to establish that
Defendants “transacted business” in New York. As an initial matter, aside from Plaintiff’s
conclusory assertions in her brief, the record before the Court is devoid of any evidence that
Defendants actually contacted personal references or took any purposeful steps in New York to
“re-confirm and/or investigate” facts in Plaintiff’s application. (Dkt. 25 at ECF 11.) Without
more, such conclusory assertions are insufficient to demonstrate personal jurisdiction.

See

Deitrick v. Gypsy Guitar Corp. et. al., 16 CIV. 616, 2016 WL 7494881, at *5 (S.D.N.Y. Dec. 28,
2016) (“Plaintiff’s conclusory claim that [defendant] sells guitars through retailers in New York is
insufficient for a prima facie showing of jurisdiction.”).
At any rate, even if pled sufficiently, such “investigatory” contacts would be insufficient
to establish personal jurisdiction because they amount to nothing more than responsive data
collection that is insufficient to confer specific jurisdiction. See Mason, 2016 WL 2636257, at *8
(no specific jurisdiction where University’s communications with plaintiffs were “responsive” and
therefore did not qualify as “purposeful availment”); Dabiri v. Federation of States Medical
Boards of United States, 08-CV-4718, 2009 WL 803126, at *1 (E.D.N.Y. Mar. 25, 2009). Dabiri
is instructive on this issue. There, the plaintiff brought an action against the Federation of States
Medical Boards (“FSMB”), alleging that he was unable to secure employment as a result of a
previous suspension of his medical license, which had been transmitted to FSMB. Id. at *1-2. The
Court declined to exercise specific jurisdiction over FSMB under CPLR § 302(a)(1), finding that
the organization’s collection and exchange of information regarding the plaintiff and other New
York residents was insufficient to confer specific jurisdiction absent, for example, allegations “that
FSMB sent a report about plaintiff to any entities or persons in New York State.” Id. at *5. The
same rationale applies here. Defendants’ actions, as alleged, amount to mere data collection from

17

Plaintiff and other individuals for the purpose of supplying a report to the District of Columbia bar
authority.
In sum, Plaintiff’s allegations of the NCBE’s episodic and responsive contacts with New
York are insufficient to establish that Defendants “transact business” in New York so as to satisfy
the first prong of the test for specific jurisdiction under CPLR 302(a)(1). 17

17

To the extent that Plaintiff is relying on Defendants’ distribution of the MPRE, MBE,
MEE, or MPT in New York or its alleged administration of the New York bar’s character and
fitness program to demonstrate that Defendants “transact business” in New York, this argument
also fails, because, as further explained below, these Plaintiff’s claims do not “arise from” these
contacts for purposes of CPLR § 302(a)(1). As to the former, Plaintiff does not allege any claim
based on, or related to, Defendants’ distribution of these exams, and thus Plaintiff’s claims cannot
be said to “arise from” these business contacts. With respect to the latter, even assuming arguendo
that the New York bar utilizes the NCBE’s character and fitness application processing services
for its admissions process, this business transaction similarly does not form the basis of, or relate
to, Plaintiff’s claim, which instead involves her application for admission to the District of
Columbia bar.
Furthermore, there is no basis for finding that the New York bar, in fact, utilizes the
NCBE’s services for its character and fitness evaluation process. In a sworn declaration provided
by Defendant Moeser, she states that the “NCBE does not perform any character and fitness
investigations of candidates seeking admission to practice law in New York[.]” (Moeser Dec. ¶
5.) In addition, the NCBE’s own website, which Plaintiff referenced in her Amended Complaint,
and the New York State Unified Court System’s website confirm that the NCBE is not involved
in the character and fitness evaluations done for New York State bar applicants. See New York –
NCBE, http://www.ncbex.org/character-and-fitness/jurisdiction/ny (last visited December 29,
2016) (New York [does not use NCBE’s character and fitness services; please contact New York
for
filing
instructions.”);
see
also
Appellate
Division,
First
Department,
http://www.courts.state.ny.us/courts/AD1/Committees&Programs/CFC/index.shtml (last visited
December 29, 2016) (“All individuals who pass the New York State bar examination . . . must
pass through an application process administered by the First Department’s Committee on
Character and Fitness . . . .”). The Court may take judicial notice of both sources of information.
See Volpe v. Am. Language Commc'n Ctr., Inc., 15 CIV. 06854, 2016 WL 4131294, at *2
(S.D.N.Y. July 29, 2016) (court can take judicial notice of information publicly available on
party’s website where authenticity is not in dispute); Wells Fargo Bank, N.A. v. Wrights Mill
Holdings, LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. 2015) (courts “routinely” take judicial notice
of documents from official government websites); Van Praagh v. Gratton, 993 F. Supp. 2d 293,
298 (E.D.N.Y. 2014) (judicial notice of company website because it was incorporated by reference
in plaintiff’s complaint). Thus, because Defendants have rebutted Plaintiff’s unsupported
allegation regarding the NCBE’s involvement in evaluating the character and fitness of New York
State bar applicants “with direct, highly specific, testimonial evidence,” which Plaintiff “does not
18

b)

“Arising From” Prong

Even accepting, for the sake of argument, Plaintiff’s contention that Defendants “transacted
business” in New York by corresponding with Plaintiff and conducting a background investigation
about her in the State, Plaintiff still cannot demonstrate that the Court has specific jurisdiction
under CPLR § 302(a)(1) because Plaintiff’s claims do not “arise from” those purported business
transactions. As explained in Torres v. Monteli Travel, Inc.:
New York courts have held that a claim “aris[es] from” a particular transaction
when there is “some articulable nexus between the business transacted and the
cause of action sued upon,” or when “there is a substantial relationship between the
transaction and the claim asserted.” A connection that is “merely coincidental” is
insufficient to support jurisdiction.
09-CV-2714, 2011 WL 2670259, at *8 (E.D.N.Y. July 7, 2011) (quoting Sole Resort, S.A. de C.V.
v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006)); see also Agency Rent A Car Sys.,
Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 31 (2d Cir. 1996) (“arising from” prong requires “a
substantial nexus” between the transaction of business and plaintiff’s claim); Jacobs v. Felix Bloch
Erben Verlag fur Buhne Film und Funk KG, 160 F. Supp. 2d 722, 739 (S.D.N.Y. 2001) (“It is
well-settled that the relationship between the claim and the in-state transaction must be direct.”
(emphasis added)) (internal quotation marks and citations omitted). “Ultimately, the analysis must
focus on the nature and quality of the individual defendant’s contact with the forum and whether
such contact has a strong relationship to the claims based on the totality of the circumstances.”
Merritt v. Airbus Americas, Inc., 2:15-CV-05937, 2016 WL 4483623, at *2 (E.D.N.Y. Aug. 22,
2016) (internal quotation marks and citation omitted) (emphasis added).

counter,” the Court deems Plaintiff’s allegation that the New York bar uses the NCBE’s character
and fitness evaluation services as having been fully refuted. Merck, 425 F. Supp. 2d at 420.
19

Plaintiff’s primary argument is that her case “directly relates to Defendants’ mailings to
New York and Defendants’ preliminary activities to confirm Plaintiff’s background.” (Dkt. 25 at
ECF 11.) Even if these contacts were sufficient to establish that Defendants “transacted business”
in New York, Plaintiff’s argument still fails because her claims arise from the NCBE’s rejection
of Plaintiff’s character and fitness application at the NCBE’s offices in Wisconsin in connection
with Plaintiff’s District of Columbia bar admission petition, and not from mailings to Plaintiff or
reference checks in New York. 18 Defendants’ alleged mailings to Plaintiff and background
investigation activities in New York are, at best, “coincidental” to Plaintiff’s claims. See Torres,
2011 WL 2670259, at *8 (“merely coincidental” connection between Defendant’s alleged business
“transaction and the claim asserted” is insufficient to support specific jurisdiction under CPLR §
302(a)(1)). Here, because the Amended Complaint fails to demonstrate an “articulable nexus”
between Defendants’ alleged business activities in New York and Plaintiff’s claims, the Court
cannot find specific jurisdiction under CPLR 302(a)(1). See Mason, 2016 WL 2636257, at *8 (no

18

Courts have recognized that courts can exercise specific jurisdiction over a defendant
where the defendant allegedly breached a contract that was entered into in New York, or supplied
goods to the plaintiff in New York. See Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 764
(2d Cir. 1983) (“Section 302(a)(1) is typically invoked for a cause of action against a defendant
who breaches a contract with plaintiff, or commits a commercial tort against plaintiff in the course
of transacting business or contracting to supply goods or services in New York.” (internal citations
omitted)). Here, however, Plaintiff fails to allege that she entered into a contract with the NCBE
while present in New York or that any contract required Defendants to supply goods or services
to her in New York. See AVRA, 41 F. Supp. 3d at 359 (S.D.N.Y. 2014) (finding no “substantial
relationship” between business transactions and claims where plaintiff alleged that contracts were
formed and executed in Germany).
To the extent Plaintiff argues that she suffered injuries in New York arising out of
Defendants’ out-of-state conduct, “New York courts have consistently held that out-of-state
injuries do not suffice for jurisdiction under § 302(a)(1) when their only connection to New York
is that they were sustained in the course of an activity that was advertised and contracted for within
the state.” Thackurdeen, 2016 WL 4578662, at *2 (collecting cases). There is no allegation or
evidence that the NCBE advertised its character and fitness evaluation services, or entered into a
contract with Plaintiff to provide those services, in New York.
20

specific jurisdiction over University on Title VII claims because even if University transacted
business in New York, “[a]ll of the alleged discriminatory harassment occurred at the University’s
campus in Seattle, Washington; all of [Plaintiff’s] reports of harassment were made to employees
at that campus; and any act, or failure to act, on those reports by the University occurred at that
campus.”). 19
2.

New York CPLR § 302(a)(3)

To the extent Plaintiff argues for specific jurisdiction under CPLR § 302(a)(3) as to her
tort claims, e.g., abuse of power, fraud, and negligence, this argument also fails. “Section
302(a)(3) permits courts to exercise specific jurisdiction over a non-domiciliary corporation that
commits a tortious act outside New York State but causes harm to someone in the state if either of
two conditions are present.” Muraco, 2015 WL 9462103, at *3 (citations omitted). One condition
is that the defendant “regularly does or solicits business, or engages in any other persistent course
of conduct, or derives substantial revenue from goods used or consumed or services rendered, in
the state.” CPLR § 302(a)(3)(i). The other condition is that the defendant “expects or should
reasonably expect the act to have consequences in the state and derives substantial revenue from
interstate or international commerce.”

CPLR § 302(a)(3)(ii).

19

Because Plaintiff fails to

See also Thackurdeen, 130 F. Supp. 3d at 801–02 (no specific jurisdiction where plaintiff
signed contract at home in New York that allowed child to participate in activity in Costa Rica,
which gave rise to cause of action); Jacobs v. Felix Bloch Erben Verlag fur Buhne Film und Funk
KG, 160 F. Supp. 2d 722, 740 (S.D.N.Y. 2001) (“Although the Plaintiffs point to numerous
transactions which relate generally to the Defendant's European production of ‘GREASE,’ these
transactions are not directly tied to the Plaintiffs’ claim. The Plaintiffs have introduced no evidence
that any of the decisions relating to the alleged infringement were made in New York or even by
personnel hired in New York.”); Stern v. Four Points, 133 A.D.3d 514, 514 (N.Y. App. Div. 2015)
(“Although ZLC's participation in the interactive website for Sheraton hotels may demonstrate that
it transacted business in New York, the relationship between ZLC’s website activities and
plaintiff’s negligence action arising from an allegedly defective condition of premises in Michigan
is too remote to support the exercise of long-arm or specific jurisdiction under CPLR 302(a)(1).”).
21

demonstrate that Defendants’ conduct caused harm or injury in New York, specific jurisdiction
cannot be found under CPLR § 302(a)(3).
For the purpose of CPLR § 302(a)(3)(ii), “[t]he situs of the injury . . . is the place where
the underlying, original event occurred which caused the injury . . . not the location where the
resultant damages are felt by the plaintiff.” M & M Packaging, Inc. v. Kole, 298 F. App’x 39, 42
(2d Cir. 2008) (internal quotation marks and citation omitted). “New York courts uniformly hold
that the situs of a nonphysical, commercial injury is where the critical events associated with the
dispute took place.” United Bank of Kuwait, PLC v. James M Bridges, Ltd., 766 F. Supp. 113, 116
(S.D.N.Y. 1991) (citation omitted). “The occurrence of financial consequences in New York due
to the fortuitous location of plaintiffs in New York is not a sufficient basis for jurisdiction under
§ 302(a)(3) where the underlying events took place outside New York.” Madison Capital Markets,
LLC v. Starneth Europe B.V., 15 CIV. 7213, 2016 WL 4484251, at *5 (S.D.N.Y. Aug. 23, 2016)
(internal quotation marks and citation omitted). “It is well-settled that residence or domicile of the
injured party within [New York] is not a sufficient predicate for jurisdiction under section
302(a)(3).” Muraco, 2015 WL 9462103, at *4.
Here, the location of the events causing the alleged injury is plainly Wisconsin, not New
York. If Defendants abused their power or engaged in fraud or negligence by rejecting Plaintiff’s
application, that conduct occurred at the NCBE’s offices in Wisconsin; and if Defendants
negligently carried out their responsibilities in processing her application, those actions also
happened at the NCBE’s offices in Wisconsin. 20 Indeed, Plaintiff concedes that “Defendants’
decisions concerning Plaintiff’s application were made in Wisconsin” and “[the NCBE’s] products
20

Plaintiff cannot establish jurisdiction for her breach of contract claims under CPLR §
302(a)(3) because that provision only applies to tortious conduct and “is not available for breach
of contract actions.” Madison Capital, 2016 WL 4484251, at *5.
22

are developed mainly in Wisconsin[.]” (Dkt. 25 at ECF 12.) Plaintiff’s only argument in support
of specific jurisdiction under CPLR § 302(a)(3) is that she allegedly incurred injury in New York,
i.e., she “suffer[ed] loss of money, loss of reputation, and loss of experience in New York.” (Id.)
But this allegation relates only to the “situs” of the resulting damages and not the initial injury.
See Thackurdeen v. Duke Univ., 130 F. Supp. 3d 792, 805–06 (S.D.N.Y. 2015) (despite plaintiffs
“undoubtedly continu[ing] to experience pain and suffering from [the death of their family
member] upon their return to New York, a litigant may not carry an injury home for purposes of
section 302(a)(3).”); Muraco, 2015 WL 9462103, at *4 (where Plaintiff’s foot was injured at a
resort in St. Lucia, the situs of the injury was St. Lucia, and “[u]nder section 302(a)(3), the fact
that Plaintiff is a New York resident and continued to suffer pain in New York as a result of the
injury is not relevant.” (citing cases)); AVRA Surgical Robotics, Inc. v. Gombert, 41 F. Supp. 3d
350, 362 (S.D.N.Y. 2014) (situs of injury is “location of the events causing the injury, rather than
the location where resultant damages were felt”). 21
The same is true with respect to Plaintiff’s “constructive fraud and misrepresentation
claim,” the factual basis of which is unclear from the Amended Complaint. Under New York law,
“constructive fraud requires: (1) a fiduciary or confidential relationship between the parties; (2) a
misrepresentation or omission of material fact; (3) which was made with the intention of inducing
reliance; and (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the
plaintiff.” Saltz v. First Frontier, LP, 782 F. Supp. 2d 61, 82 (S.D.N.Y. 2010), aff'd sub nom. Saltz
v. First Frontier, L.P., 485 F. App'x 461 (2d Cir. 2012). The only plausible reading of the
21

Even if New York law recognized the location of the resultant damages as the relevant
situs for purposes of specific jurisdiction, the Court would find that the location of the resultant
damages is not New York. Here, any loss of reputation or damages arising from the inability to
practice law would occur in the District of Columbia, since that is the jurisdiction where Plaintiff
was denied admission to the bar allegedly because of Defendants’ conduct.
23

Amended Complaint with regard to this claim is that Defendants’ December 16, 2010 letter
advising Plaintiff that her “signature page was not executed properly” was “false and unfounded,”
and thus amounted to constructive fraud. (Am. Compl. ¶ 7.) 22
With respect to an assertion of jurisdiction under CPLR § 302(a)(3) over a fraud claim,
“the critical question is . . . where the first effect of the tort was located that ultimately produced
the final economic injury.” Bank Brussels, 171 F.3d at 792. Here, Plaintiff’s allegation that she
read the December 16 letter while in New York does not satisfy this test. Plaintiff’s mere reading
of the letter is neither a “first effect” or, for that matter, any effect, of the torts that Plaintiff alleges.
Simply reading the allegedly false December 16 letter, in itself, is not a harm and thus not an
“effect” for purposes of establishing jurisdiction. The only “effects” of Defendants’ allegedly
tortious conduct are the denial of her District of Columbia bar admission and any related economic
or reputational injury. And as discussed, these “effects” could only have occurred in the District
of Columbia and not New York. See Villanova v. Harbilas, 08 CIV. 10448, 2010 WL 1640187,
at *5 (S.D.N.Y. Apr. 13, 2010) (effect of tort was in Pennsylvania for fraud claim arising out of
defendant’s improper use of funds in Pennsylvania account). 23
22

Plaintiff supplements her constructive fraud and misrepresentation claim in her
opposition brief, pointing to multiple instances of communication between herself and Defendants,
all of which were attached to affidavits as part of Defendants’ motion. But, there is no specific
jurisdiction over these claims for the same reasons jurisdiction is lacking for her fraud claim arising
out of the December 16 letter: namely, the effect of such tort was not located in New York.
23

Furthermore, the Amended Complaint fails to allege that Plaintiff relied on Defendants’
alleged misrepresentation, i.e., the December 16 letter, in New York. See Miller Inv. Trust v.
Xiangchi Chen, 967 F. Supp. 2d 686, 696 (S.D.N.Y. 2013) (no personal jurisdiction under CPLR
§ 302(a)(3) where plaintiffs failed to allege that they relied on allegedly false misrepresentation
while in New York). The Amended Complaint also suggests that even if Plaintiff read and relied
on the December 16 letter in New York, that reliance did not cause her injury, i.e., the termination
of her character and fitness application, because that termination had occurred even before Plaintiff
read the letter. According to the December 16 letter, which is incorporated by reference in the
Amended Complaint, Plaintiff’s character and fitness application was to be terminated if she failed
to send a new attestation by January 14, 2011, which was several weeks before Plaintiff claims to
24

Therefore, the Court cannot exercise specific jurisdiction over any of the Defendants
pursuant to CPLR § 302(a)(3).
CONCLUSION
For the reasons discussed above, Defendants’ motion to dismiss for lack of personal
jurisdiction is GRANTED.

The Clerk of Court is respectfully directed to enter judgment

accordingly and close this case.

SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: January 6, 2017
Brooklyn, New York

have read the letter in New York on February 8, 2011. (Dkt. 24-5 at ECF 2; Am. Compl. ¶ 7.) To
the extent Plaintiff now alleges that she relied on the December 16 and other letters she received
from the NCBE in applying to jobs in the District of Columbia, (see Dkt. 25 at ECF 24), this
argument also fails because, again, the “effect” of the alleged misrepresentation would be the
denial of a job in the District of Columbia—not New York. Thus, even accepting Plaintiff’s
allegations as true, nothing relevant to Plaintiff’s fraud claim occurred in New York. See, e.g.,
Sands Harbor Marina Corp. v. Wells Fargo Ins. Servs. of Oregon, Inc., 156 F. Supp. 3d 348, 357
(E.D.N.Y. 2016) (situs of injury was in New York because defendants made misrepresentations in
letters sent to New York, causing plaintiff to wire money, which subsequently resulted in a
financial loss in New York).
25